‘Why We Will Apply to Take Ofcom to Court Unless It Explains Its Approach to GB News’

Readers of Byline Times are likely to have been among the many who have complained to Ofcom about GB News and its partisan political stance.

Byline Times itself has repeatedly scrutinised the broadcast regulator’s unwillingness to enforce the impartiality requirements of its Broadcasting Code, other than administering a few slaps on the wrist for breaches so glaring and egregious that they could not be ignored or excused.

It has also attempted to establish the reasons for Ofcom’s forbearance.

We may be about to find out a bit more about what’s going on at Ofcom’s Riverside House HQ as I have teamed up with the Good Law Project to take the first step in a legal process, putting the regulator on notice that we intend to apply for a judicial review of its approach to GB News if Ofcom does not make it clear that it has not changed its policy in the case of smaller or non-public service broadcasters.

In particular, holding them to different standards from those governing the public service broadcasters as far as impartiality is concerned – something which the Code does not appear to permit.

What finally prompted this action were remarks by Ofcom’s CEO Dame Melanie Dawes in an interview with Sky News on 13 March. In it, she stated that its requirement for due impartiality was not “an absolute test of equal balance” but has to be achieved “in a way that’s appropriate for the audience expectation, in a way that’s appropriate for the subject matter. We expect a range of views to be brought to bear, rather than just one single view or small cluster of views”. This, she explained, “can be done… in lots and lots of different ways”.

But, crucially, she then added: “The standard for someone like the BBC, which reaches still, 70% of the TV viewing audience for news is a different one from that of a channel that has an audience of maybe 4% or 5% of a of the viewing public. We expect different things and I think that’s appropriate.”

She then went on to make a distinction between different kinds of broadcasters.

On the one hand, there are the public service broadcasters and Sky News, with their “pretty scrupulous approach to impartially”, their “high standards… underpinned by the Broadcasting Code”, and the “high levels of trust” that people have in them.

On the other, there are now channels “that can present the news from a particular perspective. It’s not about the overall output of a channel, as long as for each programme there is a sufficient range of views brought to bear. And I think that that allows a level of diversity and plurality in provision to be brought to the viewing public”.    

It is our case that Dame Melanie is proposing that channels with relatively low audience figures (although it should be pointed out that GB News still reaches millions of citizens) are held to a different standard of impartiality from that applying to the public service broadcasters.

We also argue that, judging by Dame Melanie’s interview,  ‘different’ here means less ‘scrupulous’ than the ‘high standards’ underpinned by the Code.

In our letter to Ofcom, we refer to this as the “lower standards for small or non-public service broadcasters approach”.

We are contending that this amounts to a revision of the due impartiality requirements of the Code, that this revision has been undertaken by Ofcom without any form of consultation, and that this runs counter to the 2003 Communications Act.

Among other things, this Act created Ofcom and required it to establish a standards code. Section 319(1) states: “It shall be the duty of Ofcom to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.”

No public consultation on the specific subject of impartiality has taken place since 2007, when Ofcom published the discussion document ‘New News, Future News’, which did indeed suggest relaxing the impartiality rules for smaller channels. However, the suggestions were badly received (except, all too predictably, by newspapers owned by Rupert Murdoch, who at that time was itching to turn Sky News into Fox News UK) and the idea was quietly dropped.

But, as Stewart Purvis, former Ofcom content and standards partner, and Chris Banatvala, Ofcom’s founder director of standards, have pointed out: “It is not for Ofcom but Parliament to decide whether impartiality rules should be weakened, changed or abandoned. If, after public and parliamentary debate, there’s a view that perhaps impartiality should only apply to public service broadcasters, then so be it. But, at the moment, the rules are being changed by the back door.”

We are also asking for clarification of the meaning (if any) of Dame Melanie’s statement that due impartiality “is not about the overall output of a channel”. 

As Ofcom is always at great pains to point out, the Code requires that news programmes in whatever form are presented with ‘due’ impartiality – and both the Communications Act and the Code stress that “special impartiality requirements” apply to news and other programmes dealing with “matters of political or industrial controversy and matters relating to current public policy”. These are, of course, GB News’ stock-in-trade.

But, although the word ‘due’ is made to do a great deal of heavy lifting in the Code and in its accompanying guidance notes – indeed, threatening to qualify the very notion of impartiality out of existence – nowhere is it suggested that due impartiality turns on the audience share that a particular channel enjoys.

When fining RT £200,000 in July 2019 for breaches of its impartiality rules, Ofcom explicitly stated that, although RT had a relatively small audience of, on average, 2,300 viewers, amounting to a share of total viewing in the UK of 0.03%, “in this context, the extent of a channel’s audience cannot sensibly dictate the gravity of the breach, not least because the due impartiality regime could easily be circumvented and undermined if smaller broadcasters were allowed an effective exemption from generally applied standards”.

When RT appealed against the fine, the Court of Appeal stated that “the number of viewers affected by the partial broadcasting is not the point, because Parliament has determined that such broadcasting shall be duly impartial”. It also pointed out that the harm caused by partial broadcasting “is not limited to the harm caused to viewers but extends to the harm indirectly caused to members of society generally by the provision of broadcast news and current affairs that lacks due impartiality”.

When fining talkSPORT in February 2020 for impartiality breaches in three episodes of a programme presented by George Galloway, Ofcom announced that although it “recognised that the audience for the programmes in question was small when compared to some other radio services”, it considered that the three repeated breaches of certain of the impartiality rules in its Code “had the potential to adversely affect those listeners who chose to listen to the relevant programmes and who were therefore presented with coverage of important policy and political matters which denied them an appropriately wide range of viewpoints”.

Our case rests largely on the question of whether GB News, as a smaller broadcaster, is being held to different standards from those governing public service broadcasters as far as impartiality is concerned. However, there are also other aspects of Ofcom’s approach which are troubling and are in need of investigation.

Firstly, there is the matter of freedom of expression.

In her oral evidence to the House of Commons’ Culture, Media and Sport Committee last March, Dame Melanie stated that “the phrase ‘freedom of expression’ is a very important part of this debate – one that perhaps should be a little bit more prominent”.

In the wake of the furore following then Conservative Deputy Chairman Lee Anderson interviewing then Home Secretary Suella Braverman in September 2023 on GB News, in answer to a question about whether the Code was fit for purpose, she was quoted in the Guardian as stating that: “The rules are flexible, they require us to prioritise freedom of expression, which is missing a bit in this conversation, and we feel we’ve got plenty of flexibility.”

The only problem here, however, is that the rules do not require Ofcom to ‘prioritise’ freedom of expression – they merely require it to take into consideration Articles 9 and 10 of the European Convention on Human Rights when making their judgments. In point of fact, however, they should be compliant with these articles. 

In any case, the idea of freedom of expression championed by Dame Melanie, and also by Ofcom Chair Lord Michael Grade, seems to echo that of Elon Musk and his fellow ‘free speech fundamentalists’ – namely that rules governing any speech on any platform should be at the very least relaxed, regardless of its provenance and the damage it might inflict on others, or on public and democratic life in general.